Kennedy v Bremerton School District: The Supreme Court Addresses the Interplay Between the Free Speech Clause, the Free Exercise Clause, and the Establishment Clause of the First Amendment
NewsKennedy v Bremerton School District: The Supreme Court Addresses the Interplay Between the Free Speech Clause, the Free Exercise Clause, and the Establishment Clause of the First Amendment

The United States Supreme Court recently decided a case, Kennedy v. Bremerton School District, 142 S. Ct. 2407 (2022), involving whether a school district could discipline a high school football coach who knelt at the middle of the football field after games to pray.

The coach had been praying in various school venues for several years and there had been frequent discussions about his practices between the coach and the District. He voluntarily agreed to stop certain practices, including his practice of incorporating religious references or prayer into his postgame motivational talks to his team on the field. However, he was unwilling to stop praying on the football field immediately after football games. During the time periods when the coach was praying, other members of the coaching staff were allowed to do things such as visit with friends or take personal phone calls rather than supervising students. The coach sued the District after it did not renew his contract.

Legal Issues
The coach argued the Free Speech and Free Exercise clauses of the First Amendment protected his prayer practice. The District argued that the practice had to stop because it violated the Establishment Clause of the First Amendment. The trial court and the U.S. Court of Appeals for the Ninth Circuit agreed with the District and the coach appealed to the U.S. Supreme Court.

The foundation of the District’s response to the coach’s arguments under both the Free Exercise and Free Speech clauses was that forbidding the coach’s prayer practice was necessary in order to avoid violating the Establishment Clause. The District argued that a reasonable observer, seeing the coach praying at the center of the field after games, would have considered the District’s actions in permitting that practice to have been an endorsement of religion prohibited by the Constitution. That argument had been accepted by both the trial and appellate courts. The Supreme Court, however, stated that it had “long ago abandoned” the endorsement test. (142 S.Ct. at 2427). The Court stated that, in place of the endorsement test, the Establishment Clause must be interpreted by “’reference to historical practices and understandings.” (142 S.Ct. at 2428; internal punctuation and citations omitted).

The Court stated that the Free Exercise Clause “protects not only the right to harbor religious beliefs inwardly and secretly” but also protects “the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through the performance of (or abstention from) physical acts” (142 S.Ct. at 2421; internal quotations and citations omitted).

The Court stated “[r]espect for religious expressions is indispensable to life in a free and diverse Republic. Here, a government entity sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination.” (142 S.Ct. at 2433).

The Court wrote that while courts frequently refer to the Establishment Clause, the Free Exercise Clause and the Free Speech Clause as separate entities, the three clauses appear in the same sentence of the First Amendment. That sentence states that government “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech”. (142 S.Ct. at 2426). The Court said that the natural reading of that sentence would suggest that the three clauses have complementary purposes. The Court held that an Establishment Clause violation does not automatically occur whenever a government entity fails to stop private religious speech by an employee at work.

The Court concluded by stating the District’s argument rested on the need to generate conflict between the three Clauses of the First Amendment. However, the Court held that there was no conflict between the three Clauses. It stated that “[t[here is only the ‘mere shadow’ of a conflict, a false choice premised on a misconstruction of the Establishment Clause. And in no world may a government entity’s concerns about phantom constitutional violations justify active violations of an individual’s First Amendment rights”. (142 S.Ct. at 2432).

The Court’s recitation of the facts of the case emphasized that only the three instances on which the District based its decision not to renew the coach’s contract were involved in the litigation. In those three instances, there was no evidence that anyone expressed coercion concerns to the District about the prayers involved. There was also no evidence that students felt pressured to participate. The Court pointed out that if it had had reached the holding requested by the District, not only would schools be permitted to fire staff members for praying quietly over their lunch, for wearing a yarmulke to school, for wearing a headscarf in the classroom, or for offering a prayer during a break before practice, they would be required to do so. The Court stated that such a rule would “undermine a long constitutional tradition under which learning how to tolerate diverse expressive activities has always been ‘part of learning how to live in a pluralistic society”. (142 S.Ct. at 2430; internal punctuation and citations omitted).